Research › Search › Judgment

Gujarat High Court · body

2021 DIGILAW 713 (GUJ)

AMIT VISHNUBHAI DAVE v. STATE OF GUJARAT

2021-08-23

ASHUTOSH J.SHASTRI

body2021
ORDER : [1] By way of present Criminal Revision Application under Section 397 read with Section 401 of the Criminal Procedure Code, 1973, the applicant - original complainant has challenged the legality and validity of an order dated 11.03.2020 passed below Exh.26 in ACB Case No.1 of 2006 passed by learned 2nd Additional Sessions Judge, Morbi. [2] The brief facts giving rise to the present proceedings are that the applicant - original complainant has lodged an FIR being C.R.No.9 of 2005 registered with with ACB Police Station, Rajkot on 02.09.2005 for the offences punishable under Sections 7, 12, 13(1)(d), 1, 2 and 3 and Section 13(2) of the Prevention of Corruption Act, 1988 against two accused persons named as one Pratapsinh Verubha Rana, Police Head Constable, Morbi Police Station and another Mr.M.F.Jadav, Police Inspector, Morbi City Police Station inter alia demanding bribe from the applicant by making conversation with accused No.2 and a demand of Rs.9,000/- was made. Pursuant to the investigation, the Investigating Officer has filed charge-sheet against one of the accused person namely Pratapsinh Verubha Rana under the provisions of Prevention of Corruption Act, 1988 whereas no charge-sheet was filed against Mr.M.F.Jadav, Police Inspector, Morbi Police Station. [2.1] It is the case of the applicant that to the best of knowledge alongwith the charge-sheet no final report or any summary or any report under Section 169 of the Cr.P.C. came to be filed against accused No.2 i.e Mr.M.F.Jadav, Police Inspector, who is specifically named in the FIR and further at no point of time, the applicant - original complainant was given any opportunity to submit protest application for non filing of charge-sheet against him. Since, the case is triable by the Special Court, the same is committed to the Special Court and was registered as ACB Case No.1 of 2006 and after charge having been framed, the examination of witnesses have commenced. [2.2] It is further the case of the applicant that as per the prosecution witness, the applicant herein who is examined as P.W.1 in which his chief examination is recorded and is in progress. The chief examination came to be recorded on 22.02.2011 and in which not only in the FIR specific accusation was leveled against another accused Mr.M.F.Jadav, Police Inspector but even in chief examination of the applicant involvement of accused No.2 Mr.M.F.Yadav, Police Inspector has been surfaced. The chief examination came to be recorded on 22.02.2011 and in which not only in the FIR specific accusation was leveled against another accused Mr.M.F.Jadav, Police Inspector but even in chief examination of the applicant involvement of accused No.2 Mr.M.F.Yadav, Police Inspector has been surfaced. Accordingly, an application was submitted at Exh.26 before the concerned Court in view of Section 319 of the Cr.P.C. on 29.04.2011 for joining Mr.M.F.Jadav, Police Inspector as additional accused. However, the said application came to be dismissed vide order dated 11.03.2020 mainly on the premise that at that stage of the proceedings no powers desirable to be exercised under Section 319 of the Cr.P.C. During the course of hearing, an application below Exh.27 was submitted by the retired Dy.S.P. on 26.08.2011 submitting remarks and vide Exh.36 an objection was raised by accused No.2 i.e. Mr.M.F.Jadav, Police Inspector that though he was named in the FIR but not charge-sheeted and the written objection was submitted on 23.04.2012 and later on, the impugned order is passed on 11.03.2020 which is the subject matter of present Criminal Revision Application. [3] Pursuant to the Rule having been issued by the coordinate bench of this Court vide order dated 10.06.2021, after examining the matter from time to time, the same has come up for consideration before this Court finally in which Mr.Ashish M.Dagli, learned advocate appearing for the applicant whereas Mr.J.K.Shah, learned APP is appearing on behalf of the respondent State. With these background, the Court has heard the matter. With these background, the Court has heard the matter. [4] Mr.Ashish M.Dagli, learned advocate appearing on behalf of the applicant has vehemently contended that accused No.2 i.e. Mr.M.F.Jadav, Police Inspector then was a specifically named in the FIR there are specific assertion in the complaint qua him but surprisingly has not been charge-sheeted at a relevant point of time and while not submitting charge-sheet against him, no opportunity was provided to present applicant nor any summary or final report was submitted in view of Section 169 of the Cr.P.C. Hence, in that background when a specific assertion has come out about the role of Mr.M.F.Jadav, Police Inspector there is hardly any justifiable reason not to exercise discretion under Section 319 of Cr.P.C. It has been vehemently contended that when the deposition has taken place of the applicant as P.W.1 a specific reference has been made with regard to Mr.M.F.Jadav, Police Inspector narration has also taken place on the basis of which his presence is desirable as a co-accused in the case. By referring to few paragraphs of the said examination in chef recorded a contention is raised that in such a situation the powers under Section 319 of the Cr.P.C. deserves to be exercised. [4.1] In addition to this, Mr.Dagli, learned advocate has submitted that the powers under Section 319 of the Cr.P.C. can be exercised at any stage of the proceedings particularly when now enough material has been surfaced with regard to his role which is to be examined and as such the learned Judge has committed a patent illegality in not exercising discretion under Section 319 of the Cr.P.C. Mr.Dagli, learned advocate has further submitted that the reason which has been assigned for not exercising jurisdiction is itself a serious error of jurisdiction which deserves to be corrected simply because cross examination is yet to take place, is no reason for not exercising jurisdiction. The law on the issue is amply clear by a decision delivered by the Hon'ble Apex Court whereas it is observed that Court need not wait till crossexamination gets over, examination-in-chief if surfacing, the role, the said power may be exercised and for the purpose of substantiating this contention, Mr.Dagli, learned advocate has referred to and relied upon a decision in the case of Rajesh & Ors. versus State of Haryana reported in 2019 LawSuit (SC) 1150 and by referring to the observation contended therein, a contention is raised that learned Judge ought to have examined the issue from the proposition of law laid down herein before and as such has submitted that since the reasons assigned basically contained in paragraph Nos. 8 and 9 are erroneous reflects patent illegality in exercising discretion, the order deserves to be quashed by granting relief, as prayed for. [4.2] Mr.Dagli, learned advocate appearing for the applicant has alternatively submitted that since pronouncement of the judgment of Hon'ble Court may not be within the knowledge of the court below since there was no occasion to cite the same before the learned Judge and as such with a view to arrive at a just decision at least by quashing and setting aside the impugned order, the learned Judge may be directed to take a fresh decision by keeping in view the proposition of law laid down by Hon'ble Apex Court as referred to above and then passed a fresh order and as such has alternatively submitted to remand back the proceedings for fresh consideration. [5] As against this, Mr.J.K.Shah, learned APP appearing for the respondent - State has vehemently opposed the application on the ground that balance view is taken by the learned 2nd Additional Sessions Judge since at that stage of chief examination the powers are not been exercised as there was no adequate material as found by the learned Judge. However, after going through the decision of Hon'ble Apex Court, learned APP has submitted that the reason which has been assigned as reflecting in impugned order precisely in paragraph 9, the same deserves to be reconsider by the learned Judge. However, after going through the decision of Hon'ble Apex Court, learned APP has submitted that the reason which has been assigned as reflecting in impugned order precisely in paragraph 9, the same deserves to be reconsider by the learned Judge. [5.1]Mr.J.K.Shah, learned APP has further submitted that the learned Judge was not posted with the aforesaid observations made by Hon'ble Apex Court which has led him to pass the impugned order by assigning reason as contained in paragraph 9 and candidly submitted that fresh consideration is desirable at the behest of the learned Sessions Judge keeping in view the aforesaid proposition and thereby has not much resisted the alternative submission of Mr.Ashish Dagli, learned advocate for remanding the matter back for fresh consideration since law on the issue is amply clarified by the Apex Court recently on Section 319 of the Cr.P.C. [6] Having heard learned advocates appearing for the respective parties and having gone through the material on record, it appears prima facie that initially in FIR itself Mr.M.F.Jadav, Police Inspector, Morbi City Police Station was named as accused No.2 in FIR which is reflecting on page 16. However, after the investigation is over, no charge-sheet has been filed against him and there is no material available on record of present proceedings that at any stage any summary or final report to that effect is submitted which is not considered by the learned Judge as it appears from bare reading of the impugned order. Further, it appears that during the course of deposition, the role of accused No.2 has been referred to and then an application is submitted and as such, the reason which has been assigned by the Court below that since the cross examination is yet to take place and examination in chief is not concluded hence, powers at this stage may not be exercised is deserving to be reconsider by the learned trial Judge in view of the aforementioned decision of Hon'ble Apex Court. [7] From a bare reading of the impugned order, further it appears that the learned Additional Sessions Judge has no opportunity to deal with the aforesaid two decisions of Hon'ble Apex Court as the Court presumed that the same might not have been cited though other judgments related to Section 319 of the Cr.P.C. are pointed out by the applicant before the court below and as such with a view to arrive at a proper conclusion on the request made by the applicant in view of aforesaid two decisions of Hon'ble Apex Court, in considered opinion of this Court, the alternative request made by the applicant deserves consideration and a fresh decision in accordance with law is to be taken which is desirable in the interest of justice. [8] To arrive at this conclusion, the Court has also kept in mind the very recent pronouncement of the Hon'ble Apex Court in case of Sartaj Singh versus State of Haryana and another reported in (2021) 5 SCC 337 in which also, the law on the issue of Section 319 of Cr.P.C. is discussed and the Court keeping in mind the aforesaid decision has arrived at present conclusion and additionally, for remand back the matter for reconsideration, the Court has kept in mind the principle propounded by the Hon'ble Apex Court in a recent decision reported in (2020) 14 SCC 469 . The relevant extract have not been reproduced hereunder to avoid unnecessary burden of present order but the same being significant to the issue, the Court has kept in mind. [9] Hence, while disposing of this Criminal Revision Application following order is passed: (a) The impugned decision dated 11.03.2020 is hereby quashed and set aside with a consequential direction that learned Judge shall pass afresh order in accordance with law on application Exh.26 especially keeping in view the proposition of law laid down by the Hon'ble Apex Court in a decision in the case of Rajesh & Ors. (supra) and in the case of Sartaj Singh (supra) and shall pass afresh reasoned order. (supra) and in the case of Sartaj Singh (supra) and shall pass afresh reasoned order. (b) It is made clear that this Court has not expressed any opinion on merit as to whether after the consideration of aforesaid decisions whether application Exh.26 is required to be allowed or rejected it is independently left it open to re-look the request of the applicant made in Exh.26 in the light of aforesaid observations made by the Hon'ble Apex Court. (c) It is needless to say that if any order passed adverse to the applicant, the same is assailable in accordance with law. [10] With these observations and directions, the present Criminal Revision Application stands allowed in part.